LakeWood Health Center d/b/a CHI LakeWood Health,

Docket Number18-RC-177139

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

LakeWood Health Center d/b/a Chi LakeWood Health and Minnesota Nurses Association. Case 18–RC–177139

December 28, 2016

ORDER

BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA

AND MCFERRAN

The Employer’s Request for Review of the Regional Director’s Decision and Direction of Election, which is attached as an appendix, is denied as it raises no substantial issues warranting review.1

1 In affirming the Regional Director’s finding that the patient care coordinators (PCCs) do not exercise the supervisory function of making hiring recommendations, we do not rely on his citation to Connecticut Humane Society, 358 NLRB 187 (2012). Instead, we rely on Republican Co., 361 NLRB No. 15 (2014).

Contrary to the dissent, review is not warranted based on job descriptions for the newly-created PCC position which state that PCCs possess supervisory authority to assign and responsibly direct nursing department employees, or the testimony of Vice-President of Patient Care Danielle Abel that PCCs exercise that authority. The Board has consistently held that Sec. 2(11) supervisory status cannot be established merely by “paper” authority or conclusory testimony. Peacock Productions, 364 NLRB No. 104, slip op. at 2–3 and fn. 6 (2016); G4S Regulated Security Solutions, 362 NLRB No. 134, slip op. at 2–3 (2015), and cases cited therein. Rather, “what the statute requires is evidence of actual supervisory authority visibly translated into tangible examples demonstrating the existence of such authority.” Id. citing Oil Chemical & Atomic Workers v. NLRB, 445 F.2d 237, 243 (D.C. Cir. 1971), cert. denied 404 U.S. 1039 (1972).

As the Regional Director found, Abel’s testimony on the asserted supervisory indicia was “general and conclusionary and at times contradicted by documentary evidence.” Thus, with respect to assignment authority, Abel’s testimony that PCCs exercise independent judgment in assigning a particular nurse to a patient based on an assessment of the nurse’s skills and abilities was not supported by any record evidence that the skills and abilities of the staff nurses differ. Abel’s conclusory testimony was further undermined by documentary evidence showing that for most of the shifts in evidence, the patient census was so low that there was only one nurse on duty for the PCC to assign. As the Board explained in Oakwood Healthcare, Inc., 348 NLRB 686, 693 (2006), and reiterated in Cook Inlet Tug & Barge, Inc., 362 NLRB No. 111, slip op. at 1 (2015), assignment authority is not established if there is “only one obvious choice.” We also reject, as contrary to the statutory language of 2(11), our colleague’s assertion that the PCCs have more than one obvious assignment choice in these situations—themselves or the other nurse. Sec. 2(11) clearly defines a supervisor as one who assigns “other employees,” not themselves.

We also reject the dissent’s contention that, with respect to responsible direction, review is warranted to determine whether the Regional Director’s finding that the PCCs do not exercise independent judgment in exercising this function runs afoul of NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001). As in Peacock Productions, supra, 364 NLRB No. 104, slip op. at 4, we do not reach this issue because “[e]ven assuming that [PCCs] use independent judgment in directing

Dated, Washington, D.C. December 28, 2016

______________________________________

Mark Gaston Pearce, Chairman

______________________________________

Lauren McFerran, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

MEMBER MISCIMARRA, dissenting.

My colleagues deny the Employer’s Request for Review and affirm the Regional Director’s determination that the Employer’s Patient Care Coordinators (PCCs) are not statutory supervisors. I disagree with the majority’s finding and believe that substantial questions exist regarding whether the PCCs possess authority to assign and responsibly direct other employees, which constitutes supervisory authority under Section 2(11) of the Act.

The Employer is an extremely small rural hospital located in Baudette, Minnesota that draws patients from a

other employees, the Regional Director correctly found that the record does not establish that the Employer holds [PCCs] accountable for their direction of others.” Contrary to the dissent, accountability was not established by Abel’s affirmative response to the leading question whether “it would be correct to say that the PCC will be held accountable for the performance, or lack thereof, of her subordinate.” Abel’s testimony is “simply a conclusion without evidentiary value,” Peacock Production, slip op. at 4, citing NLRB v. NSTAR Electric Co., 798 F.3d 1, 18 (1st Cir. 2015), and is irrelevant in any event as it references only the future prospect of accountability.

Finally, our colleague contends that the potential existence of the PCC’s supervisory authority is evident from the three-factor “guide” that he has proposed in prior dissents for determining supervisory status. See Cook Inlet, supra, 362 NLRB No. 111, slip op. at 5 fn. 9. We reject this proposal for the reasons we have previously stated. See Buchanan Marine, L.P., 363 NLRB No. 58, slip op. 2–3 (2015) and WSI Savannah River Site, 363 NLRB No. 113, slip op. 2–3 (2016). As in those cases, the dissent’s standard relies principally on the fact that the PCCs are the highest authority in the nursing department on weeknights and weekends. However, “highest authority” is a secondary indicium of supervisory status which does not confer 2(11) status where, as here, the putative supervisors are not shown to possess any of the primary indicia of supervisory status. Golden Crest Healthcare Center, 348 NLRB 727, 730 fn. 10 (2006).

In sum, for the reasons set forth by the Regional Director and as discussed above, the Employer has failed to meet its burden to demonstrate that PCCs are statutory supervisors. Nevertheless, we observe that our precedent does not necessarily foreclose the Employer, which never stipulated to the inclusion of the patient care coordinators, from raising their supervisory status in a future unit clarification proceeding in the event the Employer establishes the existence of newly discovered and previously unavailable evidence bearing on that issue. See generally Premier Living Center, 331 NLRB 123, 123–124 (2000).

365 NLRB No. 10

2

30–40 mile radius around Baudette.1 Although small, the hospital is a full-fledged acute care medical facility. It operates 24 hours a day, 7 days a week with 15 in-patient beds and a nursing staff that includes 6 PCCs—who are registered nurses—and their subordinates: 8–9 registered nurses (RNs), three licensed practical nurses (LPNs) and one certified nurse assistant (CNA). During each shift, the PCC is responsible for overseeing all RNs, LPNs, and the CNA. The PCC, in turn, reports to Acute Care Nursing Manager Joan Baade, who reports to Vice-President of Patient Care Danielle Abel. The seniormost hospital official is President Ben Koppelman. Significantly, the PCC is the only person present most of the time—i.e., from 7 p.m. to 8 a.m. Monday through Friday, and every weekend from 5 p.m. Friday through 8 a.m. Monday—who can give directions and assignments.2

It is undisputed that the PCC position was created on February 28, 2016, only 4 months before the hearing in this case. The record establishes that the PCC position replaced a “charge nurse” system, and this change was made for a specific purpose: to ensure that the PCC would be accountable “for the shift-by-shift work flow of the department. . . .”3 Accountability did not exist with the charge nurse system, under which charge nurses’ “sole duty was to look at staffing for the day and for the next shift.”4

According to Abel’s uncontradicted testimony, prior to the creation of the PCC position

[t]here was never anything formally designated to them for accountability of the department. Their sole duty was to look at staffing for the day and for the next shift. The charge nurses included all of the RNs, so you can imagine how difficult it is having—at the time, there was probably about 20 RNs, and trying to get all of those 20 individuals to focus on the goals and priorities of the department was essentially a moot point. It was difficult for the manager to have any accountability or any effectiveness on delegating work flows to them that needed to be maintained.5

When Abel was asked why the PCC position was created, she answered:

Accountability for the shift-by-shift work flow of the department, with having six individuals who are knowledgeable about the goals and strategic initiatives

1 The facility is also referred to as a “critical access hospital.”

2 Transcript at 68–69.

3 Transcript at 49.

4 Transcript at 30.

5 Transcript at 30–31.

for the department, in addition to supervising the employees on their shift.

* * *

And so the [prior] model, as it was, again, having about 20 RNs who would rotate in and out of a charge nurse position on a shift-by-shift daily, monthly, yearly, whatever, basis—there was no formal accountability for them, and they were not ever delegated any of the work of a manager, because the follow-through wasn’t there. The [charge nurse] position was never created in that light by the previous director.6

Accordingly, the PCC job description states that PCCs have the following authority and responsibilities:

 Responsible for Daily Nursing Assignments— assesses, identifies and communicates unit staffing needs for current and oncoming shifts and assigns admissions and/or transfers based on patient acuity level, nurse/patient ratio, and nursing skill levels.

 Coordinates...

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